As much as I blasted the Administration for its statements (check my posts) this is a bad move by the 5th Circuit. The President is a politician. While his comments were horribly wrong, they are still in a political context, and he did not say he would refuse to follow a decision. This looks like the judges are taking sides in a purely political rhetorical war, and I think that’s a bad move.
I understand your concerns, but I disagree that it was an inappropriate question or assignment. Obama is the Chief Executive of DOJ and they are defending Obamacare in the courts. Obama’s statements as the head of DOJ are relevant to the case in front of the 5th Circuit (and SCOTUS). The courts understand their constitutional place much better than the media and administration.
Furthermore, the Judges can use DOJ’s brief when ruling on the constitutionality of Obamacare. In that sense, it was brilliant because DOJ has insinuated throughout the court battles on Obamacare that the courts must consider that legislation was passed by elected officials. I am sure they made the same submission to this court so it is in fact part of their argument.
The Judge could have softened his question by not specifically mentioning the President, but this is one Judge that clearly, and appropriately in my humble opinion, wanted to get a clear statement from DOJ on the role of the courts.
Kudos to this Judge for demanding a specific answer and it will be interesting to read the response from DOJ. I won’t be surprised to see the written response in the SCOTUS decision for the majority.
It was appropriate that the 5th Circuit carry out this politically delicate, but necessary, task. It saved SCOTUS from getting into the fray and possibly tarnishing its perceived impartiality.